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4 posts from September 2012

09/25/2012

Guatemala Implements Death Penalty Decisions of Inter-American Court on Human Rights

Death Penalty Worldwide has recently confirmed that between 2005 and February 2012, the Supreme Court of Justice of Guatemala commuted all pending death sentences to the maximum imprisonment for the offender’s crimes. As a result, there currently are no death row inmates in Guatemala. The commutations were issued in response to a set of two rulings issued in 2005 by the Inter-American Court of Human Rights: Raxcacó Reyes v. Guatemala and Fermín Ramírez v. Guatemala. The Inter-American Court found that Guatemala’s death penalty violated the country’s international obligations in several respects: because it allowed for the mandatory death penalty, because it created new crimes that were punishable by death, and because there was no clemency process. 

Guatemala is considered an abolitionist de facto state by the United Nations, meaning that it has not carried out any executions in the past 10 years.  Guatemala has not executed anyone since 2000. Guatemala has also twice voted in favor of the United Nations General Assembly’s Resolution to institute a universal moratorium on the use of the death penalty, in 2007 and 2010 (in 2008, Guatemala abstained from voting).

The commutations by the Supreme Court were an enormously significant step forward for this Central American country.  However, in Guatemala the death penalty still exists in national legislation and therefore its courts may pronounce death sentences at any time. Currently, Guatemala has a de facto moratorium on the application of the death penalty, primarily because of the legal vacuum regarding the procedure to request a pardon.  Over the past few years, including in 2012, Congress has proposed three bills establishing a clemency procedure with a view to resuming executions. The first two bills were vetoed by the president, and the most recent one is still making its way through the legislative process.   The current President has resolved to carry out executions during his tenure, but until Guatemala adopts a clemency procedure any executions would violate Guatemala’s international obligations.

Today, 15 years after the peace accords were signed, Guatemala is plagued by widespread insecurity, violence, and crime.   In her March 2012 visit to Guatemala, Navi Pillay, the UN High Commissioner of Human Rights, recommended that Guatemala abolish the death penalty. Nevertheless, abolition is not likely to happen any time soon because during the current period of high public insecurity, certain sectors persistently advocate for its reinstatement.  

You can find Death Penalty Worldwide's full entry for Guatemala here.

-- Vanessa Arroyo Boy

Nevada’s Supreme Court Upholds ICJ Ruling on Consular Rights of Mexicans

On September 19, 2012, in the case of Gutierrez v. State, the Nevada Supreme Court became the second court in the United States (after Oklahoma’s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals.  In the
Avena decision, the International Court of Justice (ICJ) held that the United States had failed to notify 51 Mexican nationals on death row of their consular notification and access rights pursuant to Article 36 of the Vienna Convention on Consular Relations.  To remedy these violations, the ICJ held that the United States courts must review and reconsider the convictions and sentences of the condemned Mexicans to determine whether (and how) they were prejudiced by the deprivation of their consular rights.

In 2004, the Oklahoma Court of Criminal Appeals applied the ICJ’s ruling in the case of Osbaldo
Torres, and after conducting an evidentiary hearing, concluded that he had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma Governor had already commuted his death sentences to life imprisonment based in part on the ICJ’s decision.  But in the case of José Medellín, the Texas courts refused to follow Oklahoma’s example. The United States Supreme Court ultimately held that the ICJ’s Avena Judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.  In a
concurring opinion, however, Justice Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment.  Citing the Torres, case, he urged Texas to provide the required review:  “One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation.
Texas' duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current
controversy.”

Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in 2008 without receiving the review and reconsideration to which he was entitled under the Avena judgment.  The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.  Then, in 2011, Texas executed Humberto Leal García in violation of Avena’s mandate. 

The Nevada Supreme Court distinguished the Medellín and Leal cases, noting that Gutierrez had
presented substantial evidence of prejudice.  Gutierrez had a sixth grade education and spoke little English at the time of trial.  The court interpreter falsified his credentials and failed to correctly interpret the testimony of a number of witnesses.  In remanding the case for an evidentiary hearing, the court cited Justice Stevens’ concurrence i Medellin, noting that while “without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.”  (emphasis in original).

The court was particularly troubled by the interpreter’s falsified credentials and flawed
interpretation.  Noting that it remained an open question as to whether consular assistance might have affected the quality of interpretation available to Perez Gutierrez, the court concluded:
“What is clear, though, is if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ,  to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate
would have regularized them.”

Nevada is the only state, apart from Oklahoma, to have complied with the ICJ’s judgment.  Nevertheless, the decision provides important ammunition to foreign nationals seeking review of their Vienna Convention claims in states other than Texas. It also serves to remind lawyers that they should continue to aggressively litigate Vienna Convention violations, particularly in the cases of Mexican nationals subject to the Avena judgment. 

-- Sandra Babcock

09/09/2012

Iraq: Mass Executions and No Transparency

The United Nations and the European Union have joined human rights groups in denouncing the recent execution of 26 people in Iraq, the latest in a wave of mass executions that have been carried out since the beginning of the year.

On August 27, 21 prisoners including three women were executed in Iraq, and five more were executed two days later. This brings the total number of executions in Iraq since the beginning of 2012 to almost 100, a worrying and significant increase compared to the 68 executions carried out during the whole of 2011.

The government of Iraq does not release the names of executed prisoners or details about their trials or offenses, but a justice ministry spokesperson announced that all of the prisoners, like most of those executed in the past few years, had been convicted of charges related to terrorism. Under Iraqi law, terrorism comprises offenses against transportation and communications infrastructure, and may cover such acts as the simple theft of electricity.

In addition to concerns about the vagueness and overbreadth of the offenses for which prisoners are executed, human rights groups have been alarmed by major problems with the fairness of criminal trials and by the prevalence of torture in Iraqi prisons and detention centres. There are reports that some of the convictions were based on coerced confessions.

Mass executions have been a growing concern this past year in Iraq. On one day in January, 34 prisoners were executed – the largest number of confirmed executions worldwide in a single day in years. Responding to the news, UN High Commissioner for Human Rights Navi Pillay said she was shocked. “Even if the most scrupulous fair trial standards were observed, this would be a terrifying number of executions to take place in a single day,” she stated.

Rights groups such as Amnesty International and Human Rights Watch have been joined by the UN and the European Union in demanding a moratorium on executions. The United Nations Assistance Mission for Iraq warns that “sources have indicated that more executions may be carried out in the coming days.” Although the Iraqi government does not publish any official data on death sentences, it is estimated that hundreds of prisoners remain on death row. That number, moreover, may be on the rise: since October 2011, Iraqi authorities have been carrying out mass arrests and unlawfully detaining hundreds of people incommunicado without trial or known charges.

 

-- Delphine Lourtau

 

09/04/2012

Death Penalty Worldwide Publishes Review of Death Row Prison Conditions Around the World

Death Penalty Worldwide has published a review of prison conditions on death row around the world.  The survey of the world’s 93 retentionist and abolitionist de facto countries reveals that dismal and inhumane conditions pervade prisons in countries that retain the death penalty, including overcrowding, understaffed prisons, insufficient medical care, unsanitary living conditions leading to infectious diseases, custodial deaths, torture, corruption and inmate-on-inmate violence. 

The most common problem is prison overcrowding: prisons are filled beyond their capacity, sometimes housing up to two or three times the maximum number of inmates, and in some instances up to 600% more than the maximum holding capacity.  The problem of understaffing has in part developed from overcrowded prisons, and has in turn led to security issues and jailbreaks. 

Another widespread problem is insufficient or wholly absent medical care due to understaffing or inadequate supplies, which has caused custodial deaths on death row. In some cases, ill death row inmates are deprived of adequate medical care—or are deprived of any care at all—simply because they are on death row and already scheduled to die.  Other custodial deaths are caused by malnutrition and infectious diseases (which are linked to the problems of inadequate medical care and overcrowding) and inmate-on-inmate violence. 

Torture is also prevalent on death rows around the world, where inmates have been subjected to rape, shackling, extreme isolation or excessive use of solitary confinement and other methods of psychological or physical torture. 

Corruption and abuse in prisons is also a problem. In some cases, prison staff demand bribes or sexual favors from death row inmates in exchange for necessities like food or water.  Abuse can also take the form of humiliating treatment.

Further custodial deaths can result from inmate-on-inmate violence, which is of particular concern in prisons where more vulnerable inmates, such as juveniles, women and mentally ill prisoners are detained together with adult male prisoners. 

Our analysis reveals that the majority of states that retain the death penalty in law or in practice fall far short of international human rights norms that protect every human being—including incarcerated prisoners—from cruel, inhuman, or degrading treatment or punishment.